Q&A: Full-fledged democracy in Hungary not saved

1. Did the report conclude that Hungary is an authoritarian state?

No, rather it underlined that the Fidesz party’s supermajority in the Hungarian Parliament made it possible to adopt a series of laws that in sumseriously weakendemocracy and human rights in the country and centralise power in the hands of the government.

The report (See it here)  focused amongst other things on the following issues:

–          Constitutional and legal reforms aimed at weakening the role of the Constitutional Court; reducing checks and balances on the government, and making the judiciary more vulnerable to political influence;

–          New laws undermining media freedom;

–          Election legislation that might favour the government party;

–          The government failing to address hate speech against Roma;

–          The public works program lacking safeguards against abuse by local authorities and providing limited training to participants.

On page 9 of the report, some of the international and domestic criticism of the Orbán government and the legal reforms are referred to. Criticism is rendered which argue that the new laws move “Hungary away from the principles and practices of liberal democracy towards a centralised, semi-authoritarian state.”

The overall conclusion of the report is, however, that while “it is too early to claim that democracy is saved in Hungary”, it is “unlikely that Hungary will join the club of autocratic regimes any time soon due to pressure from civil society, the opposition and the international community” (page 59).

The report applies a comprehensive concept of democracy; explicitly referring to full-fledged democracy. This system of government includes a set of requirements in addition to holding free and fair elections, such as respect of fundamental freedoms, rule of law, and separation of powers between the executive, the legislative and the judiciary (page 10). The report does not criticise Hungary for the way elections have been performed, although it refers to criticism of new legislation on delimitations of electoral districts.

It is true that the President, the Commissioner on Human Rights and in particular the Constitutional Court have played important roles in challenging government policies and new legislation. It remains therefore a very serious concern that there seems to be continued efforts by the Fidesz supermajority to weaken the Constitutional Court.

 

2. Is the report biased against the current centre-right government and in favour of the previous socialist government?

NHC criticizes governments regardless of political ideology for violations of internationally recognised human rights. It pays particular attention to the way governments in OSCE Participating States abide by democratic principles. It is true that the NHC did not issue a report criticising wrongdoings of previous socialist governments in Hungary. As is the case of any human rights organisations, the NHC is able to monitor only a limited number of situations at any given time.

However, as a member of the International Helsinki Federation (IHF) until it ceased to exist in 2009, the NHC also contributed to criticising abuses under previous governments. In the 2007 IHF Annual report, police abuse against demonstrators in September and October 2006 is dealt with in clear and critical wording: “While the police order to put an end to the riots was fundamentally lawful, police officers committed ill-treatment on a number of occasions …” (page 82).

In the preface to its report, the NHC explains why it decided to look into current developments in Hungary. There were such strong criticisms mounted against the reforms by the Fidesz party that the NHC decided to get a better understanding by conducting meetings and interviews with stakeholders on its own. During these meetings and by studying reports and articles, NHC became further convinced that there was reason for concern.

In efforts to get a clear picture of the reforms, the NHC consulted government documents and spoke with representatives of the government and several Fidesz and KDNP Parliamentarians.

In addition, as stated on page 10 of the report, the decline of democracy in Hungary is unfortunately part of a wider picture of decline. Understanding Hungary may also help understanding the wider picture. In several former communist countries democratic values and practices have eroded in recent years. This is not mainly due to ideology, but happens because of lack of independent courts and mass media, corruption and other systemic weaknesses.

There is certainly need for good role models. If Hungary could define legislation and policies that strengthen democratic rule while at the same time overcoming economic crisis it could mean a lot in this wider picture. Hungary has played important roles in furthering democratic rule, such as in the late 1980s.

The NHC was established in 1977 in order to support dissidents in Soviet Union and other communist countries in their struggle to defend human rights. It is certainly not part of the organisations history to speak too mildly about abuse committed by communist or socialist governments.

 

3. Is the Roma issue misrepresented in the report; ignoring crimes committed by Roma?

The Roma issue is a complex one, including traditions among Roma that might make their integration, employment and education challenging. However, the main questions to be asked by human rights organisations will always be directed towards responsible authorities. How well do they address stereotypes and discriminatory attitudes and practices that hurt individual members of a minority? How do they address high unemployment, social problems, and sub-standard housing in Roma communities? Is the police sufficiently trained and equipped to provide protection against hate speech and racist violence?

Criticising government policies in this way does not signal that crimes committed by individuals of Roma origin are excused or should go unpunished. The NHC is neither principally against the public works program in Hungary, which mainly target unemployed Roma. However, the report argues strongly that the program should be improved in order to qualify participants for the ordinary labour marked and by putting in place safeguards against abuse by local mayors who administer the program. The criticism is constructive.

In April 2009, the NHC issued a comprehensive and critical report about Norway’s past policies of assimilation related to Romani (Tater) in Norway (a related group to Roma) that led to the establishment of a Government Commission that is now investigating past abuses as well as developing proposals for future measures to strengthening the group.

In the framework of the work of this Commission, the NHC took part in several dialogue meetings with members of the group which discussed both discrimination and hostility by the majority population against the group as well as traditions adhered to by the group that might make integration hard, including negative attitudes towards education and general mistrust towards Norwegian institutions.

The NHC takes the view, however, that even if such attitudes exist within a group, authorities should avoid generalisations to all members of the group and strive to build trust by entering into dialogue.

It is also a fact that Roma from EU countries arriving in Norway during the summer season to make money from begging, performing music, or by other means of work, are met with scepticism by many Norwegians. Authorities are struggling to find ways of providing some basic services, but at the same time limiting support in order not to make Norway too attractive. The police are asking for more restrictive policies, including prohibiting begging in major cities.

Neither Norway – nor any other European country – seems able to provide easy, durable and flawless solutions to minority or indeed Roma issues. There is clearly a need of co-operative projects involving both authorities and civil society organisations from different countries, in order to learn from each other’s mistakes as well as from successes.

4. Did the report overlook agreements between the government of Hungary and the Council of Europe and the EU?

The NHC knew that the government had made concessions to EU and Council of Europe criticism, and that Council of Europe experts were involved in strengthening independence of the judiciary and freedom of the media. Main parts of the international criticism and some of the government response are presented in Chapter 7 of the report. The report refers extensively to the criticism of the Venice Commission, but also shows that government response was often halfway (page 37).

The report’s overall conclusion that full-fledged democracy is not saved was based on a comprehensive view on the totality of amendments adopted by the Parliament that weakened democratic principles. Although concessions were made,the Fidesz supermajority did not seem to change its fundamental vision of centralizing power and placing political friends in key positions.

Based on extensive talks with observers both inside and outside Hungary, the NHC concluded that Fidesz could simply overrule the Constitutional Court by adopting amendments to the Constitution. By April 2014, the Fidesz supermajority has appointed nine out of 15 judges serving on the bench of the Constitutional Court. So far, Fidesz appointed judges tend with few exceptions to follow the government. In the future, the Court may therefore represent less of an obstacle to a Fidesz government than it has so far.

 

5. Has developments after the issuing of the report led to different conclusions?

The Council of Europe has secured important changes in media regulation and in the laws on the judiciary, announced by its Secretary General, Thorbjørn Jagland on 29 January 2013.[1] According to Jagland, changes have been agreed concerning “the mandate, nomination and appointment of the President of the National Media Authority and President of the Media Council, as well as the regulation of TV and radio content. The protection of journalistic sources has already been strengthened.”

However, only a few days later, on 4 February, a group of respected Hungarian organisations in a letter to Jagland underlined that “the agreement between the Council of Europe and the Hungarian government can be considered only as the first step in the process of solving the structural problems in the Hungarian media regulation.”[2]

The main point in strengthening the independence of the judiciary is that the President of the National Judicial Office (NJO) will have fewer powers. He or she can no longer be re-elected and will not remain in office until the election of a successor has taken place by a two-thirds majority in the Parliament, according to Jagland.

Even though these are positive developments, the NHC is still concerned with several aspects of the administration of the courts, including the NJO President’s rights to transfer cases and the fact that he remains “an external actor from the viewpoint of the judiciary”. The system “cannot be regarded as … judicial self-government”, as the Venice Commission critically pointed out in one of its opinions.

 

6. What are the effects of the 11 March constitutional amendments in this regard?

An extensive package of amendments, 15 pages to a 45-page Constitution, has recently been adopted by the Parliament. The amendments re-introduce a range of problematic provisions, including provisions that will weaken the independence of the judiciary, bring universities under stronger governmental control (at least financially), permit laws or local regulation that may amount to criminalizing homelessness, and define marriage as founded only on marriage between a man and a woman or as a parent-child relationship, excluding same sex couples. Constitutional Court decisions made before 1 January 2012 is annulled, even if they were based on language similar to language in the new Constitution. The Court is not permitted to review the substance of amendments to the Constitution.

The adoption of the amendments created strong reactions. [3] Mr. Jagland, on behalf of the Council of Europe, asked in vain for the Parliament to postpone the adoption of the amendments in order for the Venice Commission to consider them:

«I am concerned about the compatibility of the constitutional amendments with the principle of the rule of law, as set out in the Statute of the Council of Europe. The Hungarian government is reintroducing the Transitional Provisions which were annulled by the Constitutional Court. This gives the impression that the government is willing to use the two-thirds parliamentary majority to overrule the Constitutional Court, which might endanger the fundamental principle of checks and balances in a democracy. This is an important and complex issue that has to be closely examined by experts. It would therefore be necessary to have an Opinion from the Venice Commission.”[4]

The European Commission and the US State Department also asked for a delay.[5]

Some of the strongest criticism came from Laszlo Solyom, president of Hungary 2005-2010. He maintained that the Fidesz Party led by Viktor Orbán had used the constitution to “meet daily political goals”. He called on Janos Ader, the current president, to veto the amendments.[6]

There are different accounts as to why Fidesz decided to adopt such extensive constitutional amendments. Several members of the government justified them by pointing to a Constitutional Court ruling (Decision 45/2012, 29 December 2012) that annulled the so called Transitional Provisions to the Fundamental Law, “for formal, technical legal reasons, assessing that the Transitional Provisions contained rules which in fact were not transitional, but rather substantial ones. … these substantial rules, without incorporation into the main text of the Fundamental Law, could not be regarded as rules of constitutional value, …”[7]. In other words, according to this explanation, in order to clarify the scope and contents of the constitutional rules, the provisions that were annulled for “formal procedural reasons”, are now made part of the Fundamental Law itself by the amendments.

The critics point to a very different story. The most detailed assessment known to the NHC of the amendments has been produced jointly by the Hungarian Helsinki Committee, the Eötvös Károly Institute, and the Hungarian Civil Liberties Union: “Main concerns regarding the Fourth Amendment to the Fundamental Law of Hungary, 13 March 2013”. Its main conclusion is:

“… the Fourth Amendment undermines the rule of law in Hungary by continuing the practice of inserting provisions into the Fundamental Law which had been previously found unconstitutional by the Constitutional Court; including provisions in the Fundamental Law which violate international standards; and further weakening the control exercised by the Constitutional Court over the Parliament.”

In addition to content-based concerns as outlined in this and other comments, the NHC is concerned at the pace of constitutional reform and the seemingly lack of expert input prior to adoption in order to safeguard compliance with international human rights standards.

Firstly, if the Constitution is changed so frequently and so pervasively as is now the case in Hungary, the document’s role as a fundamental guiding document of the state could be seriously undermined. A Constitution should be drafted and adopted with a long-term view. Norway and Hungary may be two extreme cases at the moment; the Norwegian Constitution being from 1814 and quite cumbersome to amend in procedural terms. Amendments have to be proposed during one Parliament and adopted by a two-thirds majority of the subsequent Parliament.

While it could be argued that Norway is too conservative related to its Constitution, the Fidesz supermajority is certainly too radical in its willingness to amend it. By changing the Constitution in order to overrule decisions by the Constitutional Court, as it seems, Fidesz risks undermining the role of and popular respect of the Constitution.

Secondly, given the extensive criticism of the Fundamental Law adopted by the Parliament on 25 April 2011, it is hard to understand why Fidesz does not make serious efforts to ensure that constitutional amendments are in full compliance with Hungary’s human rights obligations. Let us provide one example illustrating the point.

The government has been criticised both for putting restrictions on freedom of expression as well as for being too weak on addressing anti-Roma and anti-Semitic expressions. This is a challenging task for many governments; both to provide effective protection of vulnerable groups from hate speech and violence and at the same time honor freedom of expression requirements. That is why governments and Parliaments should consult jurisprudence from relevant treaty bodies such as the European Court of Human Rights, the UN Human Rights Committee and the UN Committee on the Elimination of all forms of Racial Discrimination (CERD).

The provision contained in the amendment Article 5(5) clearly fails to honor Hungary’s international obligations to respect freedom of expression. According to the amendment, “The exercise of one’s right to free expression cannot be aimed at violating the dignity of the Hungarian nation or the dignity of any national, ethnic, racial or religious group.” The Minister of Justice, Tibor Navracsics, explained that the “reason for this provision is the recently increased hate speech against Jewish and Roma people in the public debates.”

It is the view of the NHC that authoritiesshouldfind ways to restrict hate speech against individuals belonging to ethnic or religious groups. Indeed, according to the UN Convention on the Elimination of All Forms of Racial Discrimination article 4, “States parties [like Hungary] are required to penalize racist hate speech, including dissemination of ideas based on racial superiority or hatred, incitement to racial hatred, acts of racially motivated violence and incitement to such acts.”

The UN treaty body for this convention (CERD), has issued three general comments on the implementation of article 4 of the Convention, and criticised many countries for not abiding fully by treaty obligations in this regard, including Hungary.

However, in order to balance penalisation of hate speech with the overall obligation to uphold freedom of expression (CERD article 5), such penalisation has to be precise and target only serious hate speech. Human rights law does not provide protection for abstract entities such asnations, but is designed to protect individuals only against abuse. There are numerous examples of legal protection of abstract entities or state institutions from “undignified” criticism leading to abuse. It is well known, for instance, that Turkey over time has imprisoned a large number of journalists and others for violating similar provisions.

Summing up, there is no disagreement on the need for the government in Hungary to do more to protect Roma and Jews against discrimination and hate speech. A carefully phrased constitutional provision could have been part of the solution. Unfortunately, the Parliament adopted a provision that may lead to violations of freedom of expression. This is just one example of how lawmakers could have profited from prior consultation and input from human rights expertise.

 

Links:

Government:

• ­Letter of Ambassador Géza Jeszensky
• Comments to the report by Ferenc Kumin, Deputy State Secretary for International Communication
• Fourth Amendment to Hungary’s Fundamental Law
• Explanation of the 11 March amendments
• Letter to Michael Georg Link, Staatsminister, Germany from Enikö Györi, Minister of State

Critical comments to the 11 March amendments:

• The Hungarian Helsinki Committee, Eötvas Károly Policy Institute, and Hungarian Civil Liberties Union, “Main Concerns regarding the Fourth Amendment to the Fundamental Law on Hungary”
• Human Rights Watch, Hungary: Constitution Changes Warrant EU Action
• Amnesty International, “Amnesty International’s Concerns about the Fourth amendment to Hungary’s Fundamental Law”
• Paul Krugman, The Conscience of a Liberal
• Financial Times coverage: “Hungary revisits controversial constitution plan” (4 March); “Hungary shows determination on constitution” (5 March); and “Orbán’s threat to democratic values: Europe should warn Hungary that its voting rights are at risk” (editorial 5 March)

 

---

[1] See Council of Europe Press release of 29 January 2013, “Council of Europe Secretary General welcomes changes to Hungarian laws on the media and judiciary”, available here

[2] The letter is on behalf of Mérték Media Monitor, Eötvös Public Policy Institute, South East European Network for Professionalization of Media, Hungarian Civil Leberties Union, and Hungarian Europe Society. Letter available at: http://mertek.eu/en/article/letter-of-hungarian-ngos-on-media-legislation-to-mr-thorbjorn-jagland-secretary-general

[3] Among those who provided critical analysis of the amendments were the Hungarian Helsinki Committee, the Eötvös Károly Policy Institute, and the Hungarian Civil Liberties Union (jointly), Human Rights Watch, Amnesty International, and Princeton University Professor Kim Lane Scheppele. International media provided extensive and critical media coverage.

[4] “Secretary General calls upon Hungarian government and parliament to postpone vote on constitutional amendments”, Strasbourg 6 March 2013. Available at Secretary General homepage:  http://www.coe.int/web/secretary-general

[5] “Viktor’s justice”, the Economist, March 16^th 2013, page 26.

[6] Ibid

[7] Letter to Mr. Thorbjorn Jagland, Secretary General, Council of Europe from Tibor Navracsics, Minister of Public Administration and Justice, Budapest, 7 March 2013.